190 P.2d 349 | Kan. | 1948
The opinion of the court was delivered by
Plaintiffs brought this action to recover damages to their truck alleged to have resulted from defendant’s negligence. The jury answered special questions adverse to plaintiffs upon each of the grounds of negligence alleged, but in answer to a question: “What, if any, negligence do you find against the defendant?” found a ground of negligence not alleged in the petition, and returned a general verdict for plaintiffs. Defendant moved for a judgment upon the answers to the special questions notwithstanding the general verdict and plaintiffs filed a motion for leave to amend their petition by alleging the ground of negligence found by the jury. The court sustained plaintiffs’ motion to amend and rendered judgment for plaintiffs on the general verdict. The court overruled defendant’s motion for judgment and also its motion for a new trial. Defendant has appealed.
The petition may be summarized or quoted as follows: Plaintiffs are engaged in the business of hauling oil-field equipment; defendant is engaged in exploring for producing oil and gas in this state. Sometime prior to September 6, 1945, defendant engaged from plaintiffs three trucks with their crews to assist defendant in taking a rotary drilling rig apart and moving it about half a mile and reassembling it on a new location; that while doing the work the truck crews of plaintiffs were under the direction and supervision of Jack Cahill, the agent and servant of defendant, and took their orders from him; that in assembling and raising the rig plaintiffs’ AA tandem International truck was being used in raising a derrick, for which a foundation had been prepared. The truck was placed
“6. The usual and safe method of assembling _ and raising such a derrick was: first, to fasten guy wires or snub wires in some manner to the top of the derrick and anchored in the direction from which the derrick was being raised in order that the derrick might be prevented from falling over in the direction it is pulled when it comes to an upright position; second, ‘U’ bolts were used to bolt the back side of the derrick to keep it from raising up when it reached an upright position; and third, the screws on the front rig were lengthened out to stop the derrick a little before to prevent it from coming over in place too fast when it straightened up.” (The amendment added after verdict reads): “fourth, for the driller to signal the truck driver and his helper to stop the raising of the rig prior to the time when it reached a point where it would fall over upon the truck.
“7. At the time in question when the rig was being reassembled and raised, a very strong wind was blowing from the south. In the raising and assembling of the rig, the truck driver of plaintiff’s truck was running the winch and his helper was standing on the bed of the truck watching the line taking orders from the defendant’s driller aforesaid, and passed such orders to the operator of the winch, telling him when to pull and when to stop. When the derrick was winched up to a position where the front legs of the derrick were from ten inches (10") to twelve inches (12") from the sockets which they were supposed to enter upon signal from, the helper, the driver stopped the mototf and neutralized his winch lever. (Our emphasis.) While the rig was in that position, it began to wobble and then was blown over upon this plaintiff’s truck which was being operated to raise the rig in place.
“8. The defendant’s agents and servants had negligently and carelessly failed to provide the guy wires or snubs to keep the derrick from going over; had failed to use one of the ‘U’ bolts which was to hold one side of the back side of the derrick and had barely started the nuts on the other side to the extent of about two threads and had failed, to lengthen the front legs of the derrick to keep it a little below center to prevent it from coming over into place too fast.” (The amendment added after verdict reads): “and by the negligent and careless act of the driller in failing to give a stop signal to the truck driver before the rig reached a position where it would fall over upon the truck.”
There were further allegations about damages to the truck and the loss of use thereof, for which plaintiffs prayed judgment. The answer contained a general denial of matters not admitted, admitted the residence and business of the respective parties, that plaintiff’s truck was being used to raise the derrick, and that the same was damaged by a falling mast or derrick which was being raised by
Defendant also filed a cross petition in which it repleaded the allegations of the answer and alleged that by reason of the negligent operation of plaintiffs’ truck and winch by its agents, servants and employees the upper two sections of the ninety-six foot double Franks derrick of the defendant were damaged beyond repair, and alleged the cost of replacing the same and other items of expense in connection therewith, for which it prayed judgment. It further alleged that its agents, servants and employees were acting with due care and were without fault in the premises and that the fall of the derrick and damages resulting therefrom were proximately caused by and were wholly due to the negligence and want of care of plaintiffs’ employees, as previously stated.
Plaintiffs’ reply to the answer was a general denial. They answered the cross petition by a general denial and by further alleging that plaintiffs’ agents, servants and employees in reassembling and raising the derrick worked under the direct supervision of defend
At the trial in the opening statement to the jury counsel for plaintiffs reiterated the negligence of which plaintiffs had alleged as follows:
“The evidence will show you that after the thing blew over, it was found that the Phillips employees had not lengthened their screws in front they had never been moved out of the legs of the derrick; that the U bolt taps or nuts were put on one side a very little distance and not on the other; that no snubbing line was used so that there was nothing to prevent that derrick from coming over fast and with the wind it came over and falling, damaged the truck as I have pointed out to you.”
The Franks derrick being raised weighed about ten tons. It was a steel shaft ninety-six feet long and eight feet square at the base. When raised it sat on a platform constructed for that purpose, which was about two inches higher on one side than the other. The shaft was put in position to be raised with its base near the platform on its low side, which was spoken of in the record as the “near” side. The truck used to raise it was placed on the opposite side of the platform. It was equipped with a raising line which was attached to the shaft, run over certain pulleys on the truck, and the raising was done by winch on the truck operated with power supplied by the truck. When the shaft was raised it sat on four legs. Its center of gravity was about twenty-six inches from the near side. On the
Plaintiffs’ employees on the work were George Soles, who handled the truck and the winch, and Jim Smith, his helper. Jack Cahill, defendant’s employee, was the driller in general charge of raising the derrick. Defendant’s employees, John Olson and Charles W. Reich, were to put in the U bolts and adjust and set the screws upon the far side. After the raising of the derrick started it was raised slowly, and the time it took to raise it to a vertical position was estimated by the witness as from twenty to thirty minutes. In the raising of the derrick it was intended that it should be pulled steadily up and not stopped until it would get into a vertical position. Pertinent portions of the evidence will be referred to later.
The jury returned a general verdict for plaintiffs for $5,408, and were asked and answered special questions as follows:
“1. On September 16, 1945, was it the custom and practice in the Kansas oil field to use snub wires or guy wires in raising the kind of Franks derrick involved herein? A. No.
“2. When the legs of the derrick reach a position approximately ten to twelve inches from the socket they were supposed to enter, did the driver of the Uhl truck neutralize the winch on the truck? A. No.
“3. Was there an unusually strong wind blowing at the time in question? A. No. (Strong wind) . . .
“5. Did the wind cause the derrick to be blown over? A. No.
“6. Was 'the falling of the rig an unavoidable accident as defined in the court’s instructions? A. Was avoidable.
“No. 7. What, if any, negligence do you find against the plaintiff? A. None.
“8. What, if any, negligence do you find against the defendant? A. Driller failed to give stop signal.
“9. What, if anything, do you allow the plaintiff for:
“(a) Damage .to truck? A. $4,737.00
(b) Loss of use of truck? A. 671.00”
Nothing was allowed defendant on its cross petition.
After the verdict was received plaintiffs filed a “motion for leave to amend petition to conform to the proof,” alleging as the usual
“Fourth, for the driller to signal the truck driver and his helper to stop the raising of the rig prior to the time when it reached a point where it would fall over upon the truck.”
In the petition upon which the case was tried plaintiffs had alleged (paragraph 7):
“When the derrick was winched up to a position where the front legs of the derrick were from ten inches (10") to twelve inches (12") from the sockets which they were supposed to enter upon signal from the helper, the driver stopped the motor and neutralized his winch lever.” (Emphasis ours.)
This allegation included a contention that the driver, George Soles, was acting upon signals from his helper, not upon signals from Cahill. So the amendment offered was a specific change from the allegations of the petition upon which the trial was had. The helper, Jim Smith, testified in harmony with the petition, that is, that he did give Soles directions substantially as alleged in the petition; hence, this change requested was not “to conform to the proof.” More than that, no witness called by either party testified that it was the duty of the driller Cahill to signal the truck driver Soles, or his helper Smith, to stop the raising of the rig; hence that part of the proposed amendment did not conform to proof and raised an issue that never was presented by the petition upon which the case was tried and never was in fact tried to the jury. Plaintiffs sought to amend their petition further by adding to the eighth paragraph, which set out the negligence upon which plaintiffs relied, the following:
“And by the negligent and careless act of the driller in failing to give a stop signal to the truck driver before the rig reached a position where it would fall over upon the truck.”
Several witnesses called by each of the parties testified that Ca-hill gave no stop signal to Soles and his helper. Plaintiffs in their answer to defendant’s cross petition alleged in detail that Cahill not only directed the truck crew to commence to raise the derrick, but that he continued such directions, and “that he continued to signal to the truck crew to continue the lifting of the derrick.” So, if the answer to defendant’s cross petition is to be taken into account, a matter which we need not determine, the amendment sought was in direct contradiction to plaintiffs’ allegations. There was, however, no evidence from any witness to sustain the allegations of the plaintiffs in their answer to defendant’s cross petition with re
As authority for the ruling of the trial court plaintiffs cite our statute (G. S. 1935, 60-759), the pertinent portions of which read:
“The court or judge may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; . . .” (Emphasis ours.)
In Irwin v. Paulett, 1 Kan. 418 (reprint, p. 392), it was held that “The authority to allow amendments to pleadings is derived from the code alone”; and the word “claim” as used in our statute (now G. S. 1935, 60-759) was “construed to mean the plaintiff’s right of action appearing in the pleadings.”
Plaintiffs in their petition claimed that the wind blew the derrick over and that defendant was negligent in not having snub wires or guy wires attached to the top of the derrick to keep it from going over. The jury specifically found that it was not the custom or practice to use snub wires or guy wires in raising a derrick of this kind; that there was no unusually strong wind at the time and that the wind did not cause the derrick to be blown over. (Special questions and answers Nos. 1, 3 and 5.) There is no contention here that there was not ample, competent evidence to sustain these findings. George Soles testified that he had been employed by the plaintiffs about four years operating their truck; that he had raised as many as 150 or 175 derricks of this kind and had raised this
It appears clear that every claim for judgment against defendant made by plaintiffs in their petition was negatived by the findings of the jury in their answers to special questions. In answering
It seems clear, therefore, that defendant was entitled to judgment
We think our statute (G. S. 1935, 60-759) did not authorize the court to allow the amendment to the petition which plaintiffs requested after verdict. The statute is a grant of authority with limitations. One limitation is that the amendment must be “in furtherance of justice.” The amendment was requested to conform to proof. An amendment to paragraph 6 of the petition did not conform to proof inasmuch as no one testified that it was the duty of defendant’s driller Cahill to give the operator of plaintiffs’ truck, Soles, a stop signal as the derrick reached a vertical position. In fact plaintiffs’ truck helper, Jim Smith, assumed the duty of watching the derrick when it got to be near a vertical position and giving directions to Spies, who was operating the winch, with respect thereto. No showing was made by plaintiffs as to any oversight or mistake which caused plaintiffs not to make that allegation in the first place, if it was one to be relied upon. Obviously the motion to amend was an afterthought prompted by the answers given by the jury to the special questions. Both amendments which plaintiffs asked to have made changed materially the claims of plaintiffs and presented issues of liability of the defendant which had not been tried. Even if no such stop signal had been given, which everyone conceded, the question of whether that fact had anything to do with the falling of the derrick, and hence was a proximate cause of its falling, certainly was a question never tried. The statute contained a limitation upon the authority of the court to permit such an amendment. The reading of the statute itself and the following cases support our conclusion in this respect: Fire Ins. Co. v. Amick, 37 Kan. 73, 14 Pac. 454; Walker v. O’Connell, 59 Kan. 306, 52 Pac. 894; Jewett v. Malott, 60 Kan. 509, 57 Pac. 100; Railway Co. v. Henrie, 63 Kan. 330, 65 Pac. 665; Watson v. Watson, 110 Kan. 326, 203 Pac. 714; Birch v. Solomon Nat’l Bank, 125 Kan. 211, 263 Pac. 1044; Blashum v. St. Joseph Catholic Society, 140 Kan. 290, 36 P. 2d 957; Stroud v. Sinclair Refining Co., 145 Kan. 214, 64 P. 2d 1256; Beloit Bldg. Co. v. Quinn, 145 Kan. 507, 66 P. 2d 549.
The result is that the judgment of the trial court should be reversed with directions to deny plaintiffs’ motion to amend their
It is so ordered.